1009 days ago | thevergeThe Supreme Court's Elonis decision isn't a victory for trolls - The Verge"...What Elonis wants and what he'll get, now that the Supreme Court has ruled in his favor is a "heightened mental state requirement" in the law, meaning that prosecutors can't just show that "a reasonable person would have known" that the communications were threatening. Instead, they have to show a subjective mental state on Elonis' part. It doesn't mean they have to read his mind, or his diary, or elicit a confession from him. A subjective state of mind can be inferred from the words themselves, from the context, from a person's outwardly perceived behavior.In theory, a "heightened mental state requirement" means an additional burden on prosecutors, meaning it's harder to go after people like Elonis. But in practice, it's not even obvious that prosecutors had to bring any additional evidence to Elonis' trial. If they had just slightly tweaked the wording of the jury instruction, the entire trial and subsequent conviction could have played out exactly the same way, and Elonis wouldn't have been able to appeal it, either. "You can infer what a person's state of mind is from the circumstances of how and what was said in words, correct?" Justice Sonia Sotomayor asked Elonis' attorney during oral arguments in December. "So if that's the case, isn't the jury acting like a reasonable person in looking at the words and the circumstances and saying, did he intend this or didn't he? I mean, I don't know what the difference between the standard given and the one [you want would be]."..." see full article

1011 days ago | coloradoanNational column: Free speech dodges - The Coloradoan"...The justices found the administration was seeking a fundamental change in the standard required to convict someone of a crime. The court cited the long-standing principle that "wrongdoing must be conscious to be criminal." Though there are a few exceptions, the court said, a guilty mind is "a necessary element in the proof of every crime."The 8-1 opinion written by Chief Justice John Roberts does not end the threat to free speech, but it certainly avoids the worst case scenario. However, it is still chilling that a federal trial judge and a panel of appellate judges were willing to dispense with this fundamental protection not only for criminal defendants but also for free speech.This will not be the last such attempt to use the least sympathetic characters to put new restrictions on speech. In the end, the greatest losses to liberty come from self-inflicted wounds. This week we avoided such a fatal shot, but the government's next attempt could prove more lethal to freedom of expression...." see full article

1018 days ago | fastcompanyWhy Online Harassment Is Still Ruining Lives&&And How We Can Stop It - Fast Company"...But for people disappointed by that decision, there was one promising aspect to the ruling, and it has more to do with what the court didn't say than what it did: "It implicitly suggests that threats online are no different [than threats made via other interstate communication methods]," Danielle Citron, a law professor at the University of Maryland who has studied online harassment since 2007, told Fast Company. "The Court was invited to address that question, and declined." By not drawing a distinction between threats made online and threats made in other ways, the court implied that both should be handled the same way.If only everyone would follow that lead. When crimes like stalking, threatening someone with violence, calling for others to physically harm someone, and defamation take place online, they are often treated less seriously by law enforcement, friends and family, and bystanders than when they are committed in a physical, offline place...." see full article

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1019 days ago | timesnewsFirst Amendment wins' are cause for concern - Kingsport Times News"...Would you think someone who puts up a post threatening to shoot up a kindergarten class should be behind bars? So do we. But a majority of the court doesn't. Chief Justice John Roberts said no one could be convicted of making terrorist threats, as Elonis was, for mere negligence. Free speech is one thing, but we need people like this removed from society.Fortunately, the ruling in this case is fixable.Roberts left the standard under which someone can be convicted for terrorist threats open, and Congress should waste no time in determining it...." see full article

1019 days ago | lawstreetmediaAnthony Elonis's Conviction Overturned: Are Online Threats Now Fair Game? - Law Street Media"...I can't help but wonder if this decision will help people who do plan to harm others avoid prison? There is a big concern that this will let internet abusers get around the law by writing hateful posts that technically are not threats but are still frightening to others. This decision may make it much more difficult to prosecute those whose posts are a precursor to violence that is going to take place. Only time will tell if this decision by the Supreme Court was beneficial or harmful for those dealing with internet threats...." see full article

1019 days ago | spiked-onlineElonis v US: online free speech still in the dock - Spiked"...In the meantime, however, this ruling should act as a reminder that we cannot rely on the courts, Supreme or otherwise, to protect and stand up for our free-speech rights. The First Amendment remains an enduring testament to its drafters' enlightened belief in individual rationalism and agency. But it is our responsibility to maintain the import of those beliefs on a day-to-day basis, especially online, where context and intent can easily be misinterpreted.The internet has created an unparalleled platform for discourse, debate and the sharing of ideas. But it is a platform that relies on each of us to sort the good from the bad, and the right from the wrong. That is a responsibility each of us should strive to retain as a fundamental individual freedom, online or elsewhere...." see full article

1019 days ago | dailysignalCourt Affirms You Have to Intend a Threat for It to Be a Threat - Daily Signal"...Moreover, to ensure criminal law does not capture parties who do not intend to flout the law, the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalizes otherwise innocent conduct. The jury instructions were erroneous, he concluded, because they permitted Elonis to be convicted for negligently failing to realize that someone might find his remarks threatening.The Supreme Court's Elonis decision is yet another welcome example of the correct way to interpret a federal criminal statute, and, more importantly, represents a significant safeguard against overcriminalization. The decision does not bar Congress from using a negligence standard (or some other standard) in this category of cases (or any others), but it makes clear that, unless Congress is quite clear as to what a statute requires the government to prove, federal courts should read those laws to demand proof of conscious wrongdoing as an element of a federal criminal offense...." see full article

"...And take heart, dear readers, in the fact that the court declined to take a big swing at this case. The justices decided it on narrow statutory grounds instead of broad constitutional ones, leaving for another day some of the haunting questions about gender, stalking, threats, and the Internet. Indeed the court decided this case so narrowly that the two dissenters Justices Clarence Thomas and Samuel Alito (who dissented only in part) felt that the majority simply created confusion. They sought to clarify the actual test that should be used by the courts below, fretting for future Facebookers who can't suss out the rules. For now, the Supreme Court said only that the reasonable listener standard would not suffice to support a criminal conviction of making a true threat.Take heart, also, from this 2014 article in the Columbia Law Review, authored by the University of Virginia's Leslie Kendrick, who argues against the legal principle that the state of mind of the speaker is irrelevant. Speakers need to be treated as autonomous agents. The notion of strict liability that one's behavior is all that matters regardless of state of mind punishes speakers based on how their speech is interpreted, without regard for what they sought to do. As Kendrick writes, It therefore punishes speakers for an aspect of their speech to which they have no necessary relation. ..." see full article

1020 days ago | marketwatchSupreme Court's Facebook ruling is bad news for proving online harassment - MarketWatch"...It's also no surprise to cyber bullying experts that this case involved a man harassing a woman. While both sexes are the target of online harassment, young women experience particularly severe forms of online harassment, a 2014 study by the Pew Research Center, a Washington, D.C.-based nonpartisan think tank found. One quarter of women aged 18 to 24 say they were sexually harassed versus 13% of men, while 26% of women in that age group say they were stalked versus 7% of men, although almost an equal number (50% of women and 51% of men) say they were called offensive names. We have not made it much easier for trolls to get away with terrorizing because we already don't prosecute trolls, says Danielle Keats Citron, author of Hate Crimes in Cyberspace and professor of law at the University of Maryland in Baltimore. On the plus side for victims of abuse, Citron says the Supreme Court didn't say online harassment and threats were different from those in the real world and the justices didn't give the use of rap lyrics special dispensation. I'm heartened by that, she says. But we have to educate law enforcement about the laws and the harms of online harassment. ..." see full article

1020 days ago | jewishpressUS Supreme Court Rules on 'Free Speech' in Social Media - The Jewish Press"...The decision is also particularly relevant to the brouhaha over the Jihad Watch Muhammad Art Exhibit and Cartoon Contest held in Garland, Texas a few weeks ago. Sponsored by the American Freedom Defense Initiative (AFDI) run by Pam Geller, the event attracted an attempted attack by two terrorists, who opened fire on a security guard but were both shot and killed by police.The event was organized in response to the radical Islamist attack on the Paris offices of the Charlie Hebdo French satiric magazine in January of this year, Geller said. We decided to have a cartoon contest to show we would not kowtow to violent intimidation and allow the freedom of speech to be overwhelmed by thugs and bullies, she told The Washington Post in an email statement...." see full article

1021 days ago | engadgetSupreme Court: online threats must be intentional to be illegal - Engadget"...You can't be sent to prison for kinda sorta threats in the real world, and that now applies to the internet as well. The US Supreme Court has overturned the conviction in Anthony Elonis v. United States on the grounds that online threats aren't illegal unless they're clearly intentional -- not just that a "reasonable person" would see them as hostile. When Elonis raged against his ex-wife and the government through allegedly "therapeutic" rap lyrics on Facebook, the court says, it wasn't absolutely certain that he actually wished harm. The man isn't out of the woods yet (a lower court has to look at the case once again), but there's now a higher standard for putting him behind bars.Whether or not this is a smart decision depends on who you ask. The American Civil Liberties Union is a big fan of the ruling, since it acknowledges "centuries" of legal precedent that requires the government to prove there was criminal intent. At the least, it reduces the chances that you'll be hauled off simply for writing a mean-spirited social network update or blog post...." see full article

"...The Supreme Court defended free speech on the Internet Monday, even when it comes to an angry, self-styled rapper whose rants made his wife, co-workers and others fear for their lives.Language such as "Hell hath no fury like a crazy man in a kindergarten class" is only criminal, the justices ruled, if it's intended as a threat -- not if it's merely negligent...." see full article

1021 days ago | fortuneFacebook rants are not criminal, Supreme Court says in narrow ruling"...The case attracted widespread interest because it required the court to define limits on when internet speech can become illegal. Free speech advocates argued that criminalizing Facebook rants could create a chilling effect by restricting the sort of everyday hyperbole people engage in all the time; others pointed to situations like GamerGate, which involve system online threats against women, to argue criminal restrictions can be appropriate.In the Elonis ruling, however, Chief Justice Roberts declined to set down sweeping policy statements about free speech and internet. Instead, he decided the case in a more narrow, legalistic fashion by noting that the law in question did not explain what mental state should be required for conviction...." see full article

"...Today, the Supreme Court held that you can post a threat to kill your wife on Facebook, but you're not guilty of making a threat.This is good news if you're focused on free speech, especially online. It's bad news if you're concerned about the capacity of information technology to amplify threats, stalking, and coercion.The result in the case, Elonis v. U.S., comes as something of a surprise, especially because it was a 7-2 decision, with Chief Justice Roberts writing for the court. That means the court's liberal wing, the moderate-conservatives (Kennedy, Roberts) and even Justice Scalia were all in agreement...." see full article

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